1 REVISED FEBRUARY 20, 2002

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-60547

_____________________

JESSIE DERRELL WILLIAMS,

Petitioner - Appellant,

versus

S.W. PUCKETT, Commissioner,

Mississippi Department of Corrections

and

ATTORNEY GENERAL,

STATE OF MISSISSIPPI

Respondents - Appellees.

Appeal from the United States District Court

for the Southern District of Mississippi

________________________________________________________________ February 13, 2002

Before JOLLY, HIGGINBOTHAM, and EMILIO M. GARZA, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

On January 11, 1983, Jessie Derrell Williams murdered Karen

Ann Pierce. The killing was gruesome. Pierce likely was alive

when Williams cut out her genitals. He then stabbed her in the

chest and slit her thr oat. Williams does not dispute that he

murdered Pierce nor does he dispute the manner in which he

committed the murder. After a trial and conviction for capital

murder, a jury sentenced Williams to death. After exhausting his

state remedies, Williams sought habeas relief in federal district2

court. The district court denied his petition. Williams now seeks

a certificate of appealability (“COA”). Williams argues that his

constitutional rights were violated because (1) there was

insufficient evidence presented to support a kidnaping conviction;

(2) the p rosecutor failed to turn over potentially exculpatory

information; and (3) the jury that re-sentenced Williams (after his

first sentence

-- but not his conviction

-- had been reversed) was

not instructed on the elements of kidnaping. To obtain a COA, the

defendant must make a substantial showing of the denial of a

constitutional right. 28 U.S.C. § 2253(c)(2). Williams has not

made such a showi ng with respect to any of his claims. We

therefore deny his application for a COA.

I

On the night of January 11, 1983, Pierce went with a date to

the Scoreboard Lounge in Gautier, Mississippi. Throughout the

night, Pierce consumed beer and drugs. Her date left the

Scoreboard early in the evening after she refused to go home with

him. Sometime after her date left and before Williams arrived,

Pierce was gang-raped. After the rape, Pierce and the rapists

remained at the bar. Toward the end of the evening, Williams,

Michael Norwood, and Terrell Evans arrived. Evans and Pierce began

talking, and Evans convinced her to go for a ride with Williams,

Norwood, and himself. On the way out of town, they stopped at a

convenience store, bought some beer, and continued on to a secluded3

spot off Interstate 10. They smoked marijuana and drank beer.

Norwood and Williams proceeded to have sex with Pierce a number of

times in th e bed of the truck. During one of the times with

Williams, Pierce asked him to stop. He did not. Pierce then asked

to go back to the Scoreboard to pick up some of her things. The

men refused to take her back to the bar. At some point during the

night, Pierce and Williams exited the truck. Pierce started to run

away from Williams. Williams then tackled her and dragged her into

the woods. After waiting awhile, Evans went searching for Williams

and Pierce. Evans saw Williams with a knife standing over Pierce’s

mangled and cut body. As Evans began to walk away, Williams said

“I am not leaving until I’m sure she is dead.” Fifteen minutes

later, Williams returned to the truck. The three men left the

scene. Ten days later, Pierce’s body was found. Her blood

contained

. 07 percent alcohol and traces of drugs. The cause of

death was a knife wound. The location of the wound was the area

betw een Pierce’s vagina and her rectum, a wound inflicted while

Pierce apparently was still alive.

II

In December 1983, a Mississippi jury found Williams guilty of

committing mur der during the course of a kidnaping, a capital

murder offense in Mississippi. M I SS

. C ODE A NN

. § 94-3-19(2)(e). The

jury sentenced Williams to death. Williams appealed his conviction

and sentence. In this first of several appeals, Williams asserted4

numerous claims before the Mi ssissippi Supreme Court. On rehearing, the court affirmed his conviction but found reversible

error at sentencing when the trial court allowed the prosecutor to

comment on the possibility of parole and the lengthy appellate

review process. The court remanded the case for a new sentencing

hearing. W illiams v. State

, 544 So.2d 782, 794-802 (Miss. 1987).

At this hearing, a second jury specifically found three aggravating

circumstances that weighed in favor of the death penalty: (1) that

Williams was previously convicted of a felony involving the threat

of violence to a person; (2) that the capital offense was committed

while Williams was engaged in the commission of a kidnaping; and

(3) that the capital murder of Pierc e was especially heinous,

atrocious, and cruel . The jury also found that there were no

mitigating circumstances to outweigh the aggravating circumstances.

Accordingly, the second jury, like the first jury, sentenced

Williams to death. Williams directly appealed this sentence. The

Mississippi Supreme Court rejected all of Williams’ claims and

affirmed the sentence of death. Williams then sought relief from

the United States Supreme Court. The Court denied Williams’s

petition for writ of certiorari. W illiams v. Mississippi

, 520 U.S.

1145 (1997).

While Williams was pursuing these extensive direct appeals, he

was also attacking his conviction collaterally in the state courts.

In January 1990, Williams filed an application with the Mississippi5

Supreme Court under the Post- C onviction Collateral Relief Act

(“PCCRA”). The application sought to set aside his conviction and

sentence. Williams argued that the state had violated certain

state discovery rules when it withheld information regarding a plea

agreement between the state and Evans, the key witness in this

case. The Mississippi Supreme Court denied the application and

held that Williams was procedurally barred from making this claim

collaterally. W illiams v. State

, 669 So.2d 44, 52 (Miss. 1996).

In November 199 7, Williams filed an application seeking leave to

apply for post-conviction relief a second time, claiming

ineffective assistance of counsel. The Mississippi Supreme Court

denied the application. W illiams v. State

, 722 So.2d 447 (Miss.

1998).

Williams next turned to the federal courts. In January 1999,

Williams filed a petition for relief in the Southern District of

Mississippi, in which he raised four claims related to the guilt

phase of the trial, six claims related to the sentencing phase of

the trial , and an overarching claim of ineffective assistance of

counsel. The district court denied relief, and Williams sought a

certificate of appealability. The district court denied this

request.

Finally, almost eighteen years after the night Williams killed

and mutilated Pierce, this case comes before us.

III6

Before turning to the three claims upon which Williams bases

his request for a COA, we will first address the relevant standard

of review. Williams filed his federal petition on January 8, 1999.

The Antiterrorism and Effective Death Penalty Act (AEDPA) became

effective on April 24, 1996. AEDPA therefore governs this case.

As we have previously noted, under AEDPA a petitioner is entitled

to a COA if he makes a substantial showing of the denia l of a

constitutional right. 28 U.S.C. § 2253(c). To make such a showing

the petitioner must demonstrate that “reasonable jurists could

debate (or for that matter, agree that) the [habeas] petition

should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed

further.” B arrientes v. Johnson

, 221 F.3d 741, 772 (5th Cir.

2000)(quoting Slack v. McDaniel

, 529 U.S. 473, 482 (2000)), c ert

dismissed , 121 S.Ct. 902 (2001).

Our task in this case is to decide whether the district

court’s assessment of Williams’ s constitutional claims is either

debatable or wrong. S e e Slack , 529 U.S. at 485. The district

court’s assessment of the constitutional claims of state prisoners

in a habeas petition is restricted. Under AEDPA, federal courts

must first decide the contours of clearly established federal law

as determined by the United States Supreme Court, and second,

decide whether the state court’s decision was contrary to

-- or

involved an unreasonable application of -- that law. 28 U.S.C. §7

2254(d)(1).

Just as Section 2254(d)(1) restricts the district court’s

assessment of Williams’s constitutional claims, it also limits our

review in th is COA request. We engage in the following “double

barreled” reasonableness inquiry with respect to each

constitutional cl aim: Is the district court’s determination that

the state court did not unreasonabl y apply clearly established

federal law debatable among reasonabl e jurists? S ee Barrientes

,

221 F.3d at 772 (“[T]he determination of whether a COA should issue

must be made by viewing [Williams]’s arguments through the lens of

the deferential scheme laid out in 28 U.S.C. § 2254(d).”).

With this standard of review in mind we will assess, in turn,

Williams’s claims that his constitutional rights we re violated

because (1) there was insufficient evidence to support a conviction

for kidnaping; (2) the prosecutor failed to turn over potentially

exculpatory evidence; and (3) the sentencing jury was not

instructed on the elements of kidnaping.

A

Both the state trial court and the Mississippi Supreme Court

found that there was sufficient evidence to suppo rt Williams’s

convict ion of kidnaping. The district court concluded that this

determination was not contrary to

-- and did not involve an

unreasonab le application of -- clearly established federal law.

For the following reasons, this holding by the district court is1 Evans recanted the test imony he gave in Williams’s first

trial in a 1985 sworn affidavit. In 1990, Evans recanted this

recantation. In evaluating the impact of these recantations, the

Mississippi Supreme Court found that:

Evans in his 1985 recantation affidavit never stated that

he perjured his testimony during the 1983 trial. Nor

does Evans claim to have changed his testimony due to any

‘deal.’ He merely states that his testimony was

‘colored.’ Later, in the 1990 sentencing hearing Evans

returned to his 1983 trial testimony stating that he had

no deal with the prosecution before December of 1983, and

that he told the truth back then during the original

trial.... Because of these facts, not only i s the 1985

recanting testimony of Evans suspicious, it appears

untruthful. We hold that it does not undermine the

original verdict against Williams.

Williams v. State , 669 So.2d at 54. Williams failed to challenge

this determination by the Mississippi Supreme Court in his federal

habeas petition. Williams has never asserted, much less proved,

that Evans gave perjured testimony. The district court, therefore,

did not err in considering Evans’s original testimony when deciding

whether the Mississippi Supreme Court unreasonably applied the

relevant standard to Williams’s sufficiency of the evidence claim.

8 not debatable among reasonable jurists.

Williams’s argument to the district court

-- which he reasserts in his COA request

-- was that the only basis for the

kidnaping co nviction is Evans’s testimony that Williams dragged

Pierce into the woods. Williams contends that this testimony is

unreliable because of Evans’s subsequent admission th at he was

influenced by threats and promises of the district attorney. 1 The

Supreme Court has clearly established the law with respect to a

challenge to the suffic iency of the evidence. In J ackson v.

Virginia , the Court stated:

[T]he critical inquiry on a review of the sufficiency of

the evidence to support a criminal conviction must be not9

simpl y to determine whether the jury was properly

instructed, but to determine whether the record evidence

could reaso nably support a finding of guilt beyond a

reasonable doubt

.... [T]he relevant question is whether,

after viewing the evidence in the light most favorable to

the prosecution, any rationa l trier of fact could have

found the essential elements beyond a reasonable doubt.

443 U.S. 307, 319 (1979)(citations omitted). The Mississippi

Supreme C ourt correctly identified this federal law as the

applicable standard when it evaluated Williams’s sufficiency of the

evidence claim. Williams v. State , 544 So.2d at 789.

Under Mississippi law, to prove kidnaping the state must show

that the defendant (1) forc ibly seized and confined or (2)

inveigled or kidnaped another, with the intent to cause such a

person either (a) to be secretly confined, or (b) to be deprived of

liberty or in any way held to service against her will. M I SS

. C ODE

A NN

. § 97-3-53; Hughes v. State

, 401 So.2d 1100, 1105 (Miss. 1981).

In this case, the evidence supporting the kidnaping conviction

is substantial: First, there is E vans’s testimony that he saw

Williams drag Pierce into the woods; second, there is the

undisputed fact that Pierce was high on drugs and drunk on alcohol

on the night in question, which suggests that she m ight not have

knowingly gone along with the men, that is, she was inveigled;

third, there is the men’s refusal of Pierce’s request to go back to

the bar and retrieve her things; and finally, there is the abused

and mangled condition of Pierce’s body, suggesting a struggle. It

may well be true, as Williams argues, that some evidence suggests10

a finding against kidnaping, including Pierce’s voluntary sexual

activities with Williams and Norwood and the testimony that Pierce

smoked, laughed, and drank with the men prior to her murder. The

jury, however, weighed the evidence

-- as indeed was its

prerogative and duty -- and found that Williams kidnaped Pierce.

The Mississippi Supreme Court held that, viewing the evidence

in the light most favorable to the prosecution, a rational trier of

fact could have found all the elements of kidnaping. The district

court found that this holding was not an unreasonable application

of the Jackson standard. We think that, given the magnitude of the

evidence pointing toward kidnaping, this holding by the district

court is not debatable among reasonable jurists. We therefore deny

Williams’s request for a COA on this claim.

B

The Mississippi Supreme Court fou nd that Williams’s due

process rights were not violated when the prosecutor and trial

judge failed to grant him access t o potentially exculpatory

information. The district court held that this finding was not

contrary to, and did not involve an unreasonable ap plication of,

clearly established federal law. We will therefore determine

whether this h olding of the district court is debatable among

reasonable jurists.

It is well-settled law that “suppression by the prosecutor of

evidence favorable to an accused

... violates due process where the11

evidence is material, either to guilt or punishment, irrespective

of the good faith or bad faith of the prosecutor.” B rady v.

Maryland

, 373 U.S. 83, 87 (1963). Evidence is material for the

purpose of a Brady violation if “there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of

the proceeding would have bee n different.” U nited States v.

Bagley , 473 U.S. 667, 678 (1985).

Williams contends that P ierce’s bruised and beaten body was

the result of the gang-rape she endured earlier in the evening.

Based on this contention, W illiams argues that because the

prosecutor and the trial court denied him access to the rapists’

statements, he could not develop a defense that showed that the

gang-rape -- as opposed to a struggle with Williams -- caused the

horrific condition of Pierce’s body.

A majority of the Mississippi Supreme Court failed to see how

the jury could have reached a different result, even if Williams

had offered this defense. W illiams v. St ate , 544 So.2d at 792

(“[T]here is no probability, much less a reasonable probability as

required by law, that this material would have altered the outcome

of the trial.”).

In his federal habeas petition, Williams requested an

evidentiary hearing on the issue of the “materiality” of the gang

rape evidence. The district court denied Williams’s request,

holding that the Mississippi Supreme Court had not un reasonably12

applied the Brady/Bagley standard.

In evaluating “materiality” under the Brady/Bagley standard,

the question is whether there is a reasonable probability that the

jury would h ave determined that the murder did not occur in the

course of a kidnaping, if the prosecutor had not suppressed the

gang-rape evidence. Aside from the condition of Pierce’s body,

there is still ample evidence of kidnaping: the evidence showed

that Williams tackled Pierce and dragged her into the woods, that

Pierce asked to go back to the bar but Williams refused; and that

Pierce was high and drunk on the night of her murder.

Thus, we are in full agreement with the trial court, the

Mississ ippi Supreme Court, and the district court that the

statements relating to the gang rape are not material under the

Brady/Bagley standard; that is, even if the prosecutor had revealed

these statements to Williams and Williams had used these statements

in his defense, the jury nevertheless would have found him guilty

of murder during the course of a kidnaping. Accordingly, we find

that the district court ’s holding that the Mississippi Supreme

Court reasonably applied fe deral law with respect to Williams’s

Brady claim is not debatable among reasonable jurists.

C

Finally, we evaluate Williams’s claim that his constitutional

rights were violated because the jury that re-sentenced him was not

instructed on the elements of kidnaping. The Mississippi Supreme13

Court first found this claim procedurally barred because Williams

had failed to make a contemporaneous objection to the jury charge.

Williams v. State

, 684 So.2d 1179, 1189 (Miss. 1996); see also Cole

v. State

, 525 So.2d 365, 369 (Miss. 1987)(holding that the

contemporaneous objection rule applies fully in death penalty

cases). In the alternative, the Mississippi Supreme Court

addressed the merits of the claim. It held that Williams was “not

entitled to attempt to prove to the [sentencing] jury that he did

not commit kidnaping [and to allow Williams to do so], would fly in

the face of this Court’s prior affirmance of [his] conviction.” I d

at 1190.

In denying Williams’s federal habea s petition, the district

court addressed the Mississippi Supreme Court’s ruling on the

merits; it did not resolve the claim on the basis of the procedural

bar. The district court found that the failure to give a kidnaping

instruction during a re-sentencin g proceeding involving a new

sentencing jury does not amount to a denial of due process.

Consequently, it found that the Mississippi Supreme Court’s

analogous holding was not an unreasonable applicati on of federal

law. We need not address the substance of the claim because it is

clear that the Mississippi Supr eme Court correctly applied the

procedural bar. The district court’s decision to deny habeas

relief on this claim is the refore not debatable among reasonable2 With respect to each claim in a COA request, we are, in

effect, evaluating the final decision of the district court denying

the habeas petition

- - asking whether this decision itself is

debatable among reasonable jurists.

14 jurists. 2

A state court may deny relief on procedural grounds and then

reach the merits of the claim in the alternative. “[A] state court

need not fear reaching the me r its of a federal claim in an

alternative holding. By its very definition, the adequate and

independent state -ground doctrine requires the federal courts to

honor a state holding that is a suf ficient basis for the state

court judgment, even when the state court also relied on federal

law.” H arris v. Reed

, 489 U.S. 255, 264 n.10 (1989). In sum, the

Mississippi Supreme Court’s rulin g on the merits need not be

addressed if its invocation of the procedural bar was

constitutionally appropriate.

The Supreme Court has held that procedural bars are cognizable

in habeas cases where (1) there is an independent and adequate

state procedural rule and (2) the petitioner does not demonstrate

both cause for the default and actual prejudice as a result of the

violation of federal law, or demonstrate that a failure to consider

the claims will result in a “miscarriage of justice.” Coleman v.

Johnson

, 501 U.S. 722 (1991); Wainwright v. Sykes

, 433 U.S. 72, 86

(1977).15

Williams argues that the state procedural bar in this case is

inadequate because the Mississippi Suprem e Court has applied the

b ar in death penalty cases in an inconsistent, almost rand om,

fashion. In making this argument, Williams bears the “burden of

showing that the state did not strictly or regularly follow a

procedural bar ar ound the time of his direct appeal.” S tokes v.

Anderson

, 123 F.3d 858, 860 (5th Cir. 1997)(citations omitted); see

also Johnson v. Mississippi

, 486 U.S. 578, 587 (1988)(“A state

procedural rule is not adequate unless it is strictly and regularly

followed.”). Williams must demonstrate that “the state has failed

to apply the procedural bar to claims identical or similar to those

raised by [Williams] himself.” Id . Williams points to one case

only to satisfy this burden -- H unter v. State

, 684 So.2d 625

(Miss. 1996).

In H unter

, the defendant was convicted of murder during th e

course of a robbery. At the guilt phase of the trial, the trial

court failed to instruct the jury on the elements of robbery. The

Mississippi Supreme Court found this failure to be a reversible

error -- despite the fact that the defendant had not

contemporaneously objected to the jury charge. Id . at 635.

The defendant’s claim in Hunter substantially differs from the

claim made here. In H unter

, the failure to instr uct occurred at

the guilt phase of the tria l. It was Hunter’s actual conviction

for capital murder that was at issue. Here, Williams had already16

been convicted of murder during the course of a kidnaping

--

neither the fact of his conviction nor his guilt was in question.

On the other hand, the sentencing jury’s charge was to find -- and

t hen weigh

-- statutorily defined aggravating and mitigat ing

circumstances. S ee M ISS

. C ODE A NN

. § 99-19-101. In Mississippi, one

of the aggravating circumstances (i.e., aggravators) is kidnaping.

However, unlike a conviction determination, the sentencing jury is

not required to focus on each element of kidnaping, but instead on

weighing the aggravated nature of the kidnaping against the

mitigators. C ompare M ISS

. C ODE A NN

. § 97-3-53 (defining the elements

of kidnaping for the purpose of a kidnaping conviction) with M ISS

.

C ODE A NN

. § 99-19-101 (listing kidnaping in a series of possible

aggravating circumsta nces); s ee also Conley v. State

, 790 So.2d

773, 794 (Miss. 2001)(interpreting the elements of kidnaping for a

kidnaping conviction). In sum, the two cases are rationally

distinguishable and the Mississippi Supreme Court’s a pplying the

procedural bar in Williams and not in Hunter is neither random nor

arbitrary. H unter is therefore inapt, and the procedural bar is

adequate.

Given the procedural bar, for us to reach the merits of the

claim, Williams must show either (1) that there was cause for his

failure to object and prejudice from the failure to consider the

alleged violation of federal law or (2) that there was a

miscarriage of justice when the state court failed to consider the3 Williams also argues that the trial court invoked the

principles of collateral estoppel at sentencing and that such a use

of estoppel is unconstitutional. The courts are split on the

questio n of whether the use of collateral estoppel against a

criminal def endant comports with the right to a jury trial. S ee

United States v. Gallardo-Mendez

, 150 F.3d 1 240, 1242 n.3 (10th

Cir. 1998)(“There is a clear split among our sister circuits that

have ruled on the question of whether the g overnment may use the

doctrine of collateral estoppel to preclude a criminal defendant

from raising an issue adjudicated in a prior criminal

proceeding.”). That being said, this case does not involve the

application of collateral estoppel against Will iams. The trial

court did not find the kidnaping aggravator -- as a matter of law

-- based on the kidnaping conviction.

17 merits of the claim. S ee Coleman v. Thompson

, 501 U.S. 722 (1991).

Williams does not give any reason for his failure to object to

the sentencing jury charge. There is no cause. Furthermore, the

failure to instruct did not prejudice Williams or result in a

miscarriage of justice.

At the sentencing proceeding, the parties vigorously litigated

the kidnaping aggravator. Both parties introduced evidence that

went straight to the question of whet her Williams dragged Pierce

into the woods against her will. It is true that the prosecutor

introduced the kidnaping conviction

-- admittedly powerful evidence

for the state’s case at the sentencing. The trial court

nevertheless required the sentencing jury to find the kidnaping

aggravator beyond a reasonable doubt. 3 The evidence is more than

ample to support the jury’s finding. Consequently, we find no

prejudice or miscarriage of justice here.

Because Williams has not shown (1) that the procedural bar was

inadequate, or (2) that there is a reason for his failure to object18

and further that the failure to object resulted in actual

prejudice, or (3) that the failure to consider these claims

resulted in a miscarriage of justice, we hold that the district

court’s decision denying relief on this claim is not debatable

among reasonable jurists. We therefore deny Williams’s request for

a COA on this claim.

IV

In sum, we hold that Williams has not made a substantial

showing of the denial of a constitutional right with respect to any

of his claims. Williams has not substantiated his claims that (1)

there was insuffici ent evidence to support the kidnaping

conviction; (2) he was entitled to have the prosecutor turn over

evidence relating to Pierce’s gang-rape; and (3) he was entitled to

have the sentencing jury instructed on the elements of kidnaping.

Williams’s request for a certificate of appealability on each of

these claims is

DENIED.